Licence Appeal Tribunal File Number: 22-007313/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Lauretta Grant
Applicant
and
Intact Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Neisha Moses, Paralegal
For the Respondent:
Navjot Banipal, Matthew Stanley, Counsel
HEARD: In Writing
By way of written hearing
OVERVIEW
1Ms. Lauretta Grant (the applicant) was involved in an automobile accident on June 13, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
Preliminary Issue #1 – Page Limits
2The respondent raises a preliminary issue regarding the length of submissions made by the applicant. The submission page length was set at 10 pages in the Case Conference Report and Order dated March 27, 2023. The respondent argues that either pages 16 through 20 or 18 to 20 in the submissions should be disregarded based on the interpretation of when the actual reply starts.
3The applicant argues that the submission starts on page 7 and that quotations from case law on pages 15 and 16 should be excluded from page limit calculations. They also contend, that based on interpretation, that the page limit was not exceeded by a significant amount.
4Further, the applicant argues that the respondent has not articulated how they are prejudiced by the exceeding of the page limit.
5I agree with the respondent that the page limit has been exceeded, but I also agree with the applicant that the respondent has not articulated how they are prejudiced by exceeding the page limit.
6I will allow the applicant’s full submissions.
Preliminary Issue #2 – New evidence
7The respondent argues that the applicant has adduced new evidence in their reply submissions. This new evidence was disputing the validity of testing completed by Dr. Harris in his s. 44 psychological examination. The tests in question are the Structured Inventory of Malingered Symptomology and the Structured Interview of Reported Symptoms. These two tests are focused on uncovering if a person being examined is malingering or feigning their symptoms.
8The respondent requests that paragraphs 8 to 10 and 12 be struck on the basis that they are new arguments and evidence not included in their main submissions.
9The respondent contents that a reply submission is intended to address issues raised by the respondent’s submission which could not have been anticipated when the applicant made her initial submission. The argument that respondent relies on is from 18-001471 v Economical Insurance Company, 2019 CanLII 22187 (ON LAT) . That case outlined that the right to reply is a limited one and generally, parties are expected to make the entirety of their case in their initial submissions. It further states that new evidence as part of a reply is not permitted because the responding parties do not have the opportunity to respond to the new evidence.
10On review, I disagree with the respondent that the applicant has introduced new arguments and evidence in their reply submissions. I believe that the applicant is responding to evidence that the applicant is relying upon in their argument. As such, paragraphs 8 to 10 and 12 will not be struck.
ISSUES
11The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the Applicant entitled to the assessments proposed by Prime Health Care Inc. as follows:
$2,000.00 for a psychological assessment, in a treatment plan dated September 28, 2020.
$2,000.00 for a chronic pain assessment, in a treatment plan dated, August 21, 2020.
iii. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
12I find that the applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.
13As a result, the applicant is not entitled to the treatment plans in dispute, an award or interest.
ANALYSIS
The Minor Injury Guideline (“MIG”)
14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
15An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
16The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from the MIG due to chronic pain and a psychological condition.
17The respondent argues that the applicant has not met the burden of proof that her injuries from the motor vehicle accident have led to chronic pain with a functional impairment or a psychological condition.
The applicant remains within the MIG
18I find that the applicant has not met her onus and demonstrated that she suffers from chronic pain with a functional impairment that warrants her removal from MIG for physical treatments.
19I find that the applicant has not met her onus and demonstrated that she suffers from a psychological condition as a result of the motor vehicle accident that warrants her removal from MIG.
Does the applicant suffer from chronic pain?
20I do not find that the applicant suffers from chronic pain.
21The Tribunal has determined that chronic pain with a functional impairment may warrant MIG removal.
22The applicant submits that she suffers from chronic pain with a functional impairment due to the motor vehicle accident.
23The respondent submits that that the applicant has not met the burden of proof in providing sufficient compelling medical evidence that she suffers from chronic pain with a functional impairment.
24The applicant relies on the Clinical Notes and Records (CNRs) from Dr. Mok, her family doctor, a pre-screen assessment by Dr. Hefford and notes from Dr. Karmy, along with imaging from Dr. Maze.
25The respondent relies on Insurer’s Examinations including a physical examination by Dr. Bansal.
26In the reviewed clinical notes and records of Dr. Mok, the applicant’s family doctor, I do not see a pattern in the CNRs of issues with the doctor noting chronic pain in the applicant. The CNRs also note a fall in 2017, and another car accident in 2018. It is difficult in review of the CNRs to attribute the ongoing discussion on pain to a particular source. In addition, the imaging of the applicant in evidence does not show any ongoing issues related to the accident. All of the imaging has produced either unremarkable results, or mild issues that are not tied in the diagnosis to the motor vehicle accident.
27A chronic pain pre-screen notes were completed by Dr. Karmy and was included in an OCF-18 completed on April 28, 2020. In this report Dr. Karmy recommends that due to multiple chronic injuries as diagnosed by Dr. Hefford, barriers to recovery could include multiple site injuries, health history, and psychological barrier so that a chronic pain assessment should be completed. The OCF-18 completed by Dr. Hefford includes a checklist of issues, but I found no evidence that any physical or medical testing was performed to substantiate the diagnosis he made. It is unclear if Dr. Karmy saw the applicant in person to come to a determination or only evaluated a report by Dr. Hefford. The doctor made no determination on chronic pain, only that it should be further investigated.
28A s. 44 independent musculoskeletal in-person examination was completed by Dr. Bansal on May 11, 2023. This examination was a combination of an interview and physical exam. The physical examination was stated to be unremarkable with no musculoskeletal, orthopedic, or neurological injuries identified. The doctor concluded that the applicant suffered from self-resolving minor injuries in relation to the motor vehicle accident and that no further physical treatment plans were reasonable or necessary.
29Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that the injuries she suffered in the accident have led to chronic pain with a functional impairment.
30I was led to this conclusion by the lack of compelling medical evidence that chronic pain with a functional impairment directly linked to the motor vehicle accident is present in the applicant. The note by Dr. Karmy was made without an examination and was seemingly based on a report by Dr. Hefford that does not note any physical examination beyond the applicant’s self reporting. In contrast, the s. 44 report by Dr. Bansal included a review of all medical documentation to date, including imaging, along with a physical examination to render the diagnosis on minor injuries.
31The applicant has not satisfied me that she suffers from chronic pain with a functional impairment.
Does the applicant suffer from a psychological condition?
32The applicant has not satisfied me that she suffers from a psychological condition.
33The Tribunal has determined that a psychological condition may warrant MIG removal.
34The applicant argues that she has suffered from a psychological condition due to the motor vehicle accident.
35The respondent argues that the applicant has not met her onus to prove on a balance of probabilities that she suffers from a psychological condition due to the motor vehicle accident.
36The applicant relies on the CNRs of Dr. Mok and a pre-screen by Dr. Shaul.
37The respondent relies on a psychological examination conducted by Dr. Harris.
38In the CNRs of Dr. Mok is an assessment by Dr. Monir-Abbasi completed on October 29, 2018. In the report the doctor notes that the applicant’s depression is related to her being laid off work and an unplanned pregnancy. The report also notes that the applicant is withdrawing from activities due to her feelings over her loss of work. It also notes anxiety related to finances, childcare, and lack of employment. An additional source of stress noted is her relationship with her separated husband. This report did not mention the motor vehicle accident, or any issues of pain as a source of ongoing depression or anxiety.
39A psychological pre-screen note was completed by Dr. Shaul on September 28, 2020, based on the OCF-18 pre-screen interview Dr. Hefford completed on April 29, 2020. It does not appear that Dr. Shaul spoke to the applicant and that he based his note on the Dr. Hefford interview. The interview itself was a checklist style of self reporting and I saw no evidence of psychometric testing performed. The doctor opined that the applicant should receive a complete examination and assessment, due to his report not being detailed enough to provide a comprehensive assessment of the applicant’s mental state. The doctor did not make an evaluation and in the OCF-18 indicated “if it is determined that any psychological problems may have been caused by the accident or if any psychological barriers to recovery exist, a psychologist would explore whether treatment may be of benefit.”
40A s. 44 psychological examination was conducted by Dr. Harris on June 1, 2023. This in-person examination was a combination of a clinical interview and psychometric testing. The diagnosis of the doctor was that the applicant did not suffer from any accident-related psychological impairments based on his interview and testing.
The testing included:
i. Structured Inventory of Malingered Symptomology test. In this test, the applicant’s score was significantly elevated. Her test score of 39 is well beyond the 14 cut off, indicating some malingering.
ii. Structured Interview of Reported Symptoms showed markedly elevated scores that are strongly characteristic of a client feigning a mental disorder. Of the eight primary scales, two fell in the definite range for feigning, and four in the probable range. The doctor noted this pattern is rarely observed in clients with genuine disorders who endeavor to present themselves accurately.
iii. Beck Anxiety Inventory showed severe range.
iv. Beck Depression Inventory showed severe range.
v. Brief Pain Inventory showed above average amount of pain. The applicant selected 10 out of 10 in all but one of the test items.
vi. PTSD Checklist showed well above the cut-off for a tentative PTSD diagnosis.
41Reviewing the evidence, I agree with the respondent that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition suffered in relation to the motor vehicle accident.
42I made this conclusion based on the lack of compelling medical evidence of a psychological condition directly linked to the motor vehicle accident is present in the applicant. The note by Dr. Shaul was made without a examination and based on a report by Dr. Hefford that does not note any psychometric testing to arrive at the diagnosis beyond the applicant’s self reporting. In contrast, the s. 44 by Dr. Harris was a combination of a clinical in-person interview and psychometric testing. I found the extremely high scores on testing around malingering and feigning compelling. I also combined the malingering and feigning noted with a review of the assessment completed by Dr. Monir-Abbasi on October 28, 2018, that did not include any mention of pain or the motor vehicle accident as a source of her ongoing depression and anxiety.
43The applicant has not satisfied me that she suffers from a psychological condition resulting from the motor vehicle accident.
Conclusion
44For the reasons noted above, the applicant has not proven that she suffers from chronic pain with a functional impairment or a psychological condition to warrant removal from MIG.
The Treatment Plans
45As I have found the applicant to remain within the MIG and is subject to its limits for treatment plans, and as the treatment plans in question are beyond the MIG limits remaining, the applicant is not entitled to payment for either plan.
Special Award
28As the applicant is not entitled to payment for the two treatment plans in question an award under s.10 of O. Reg. 664 is not appropriate.
Interest
29As the applicant is not entitled to any payments, no interest is due.
ORDER
30I find that:
i. The applicant remains subject to the MIG.
ii. The applicant is not entitled to payment for the two treatment plans at issue.
iii. The applicant is not entitled to a payment of an award under s.10 of O. Reg. 664
iv. As nothing is owed, no interest is due.
v. The application is dismissed.
Released: September 23, 2024
Robert Rock
Adjudicator